The King v XN
[2025] NTSC 25
•5 December 2024
CITATION:The King v XN [2025] NTSC 25
PARTIES:THE KING
v
XN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22334961 & 22316267
DELIVERED: 5 December 2024
HEARING DATES: 19 November 2024
PUBLISHED: 23 April 2025
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL PROCEDURE – Joinder and severance – whether one count of
gross indecency properly joined with two counts of assault with
circumstance of aggravation – newly enacted presumption under s 341B of
the Criminal Code applied to domestic violence offences – whether
directions could overcome prejudice inherent in sexual offences – held,
counts properly joined – severance application dismissed.
Statutes
Criminal Code: ss 309, 341(1), 341B
Domestic and Family Violence Act; s 5(1)(b)
Justice Legislation (Domestic and Family Violence Act) 2023
De Jesus v The Queen (1986) 61 ALJR 1; HML v The Queen (2008) 235
CLR 334; KRM v R [2001] 206 CLR 22; Packett v The King (1937) 58 CLR
R v FDP (2009) 74 NSWLR 649; R v Hofschuster 1992) NTSC 23; R v
Johnston [2016] NTSC 57; R v LM [2017] NTSC 81; R v O’Brien [2017]
NTSC 34; R v PJMS [2011] NTSC 48; R v TJB [1998] 4 VR 621; Sutton v
The Queen (1984) 152 CLR 528; The King v Swan [2024] NTSC 82; The
Queen v LM [2017] NTSC 81; Wilson v The Queen (1970) 123 CLR 334;
cases referred to.
REPRESENTATION:
Counsel:
Applicant:P Crean
Respondent: S Love
Solicitors:
Applicant:Maleys
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: BLO2506
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v XN [2025] NTSC 25
No.22334961 & 22316267
BETWEEN:
THE KING
Appellant
AND:
XN
Respondent
CORAM: BLOKLAND J
Ruling on joinder/ severance of counts
(Published 23 April 2025)
Background
These are reasons for a ruling made on 5 December 2024.
The accused faced three counts on an ex officio indictment across two files.
He initially faced a single count of gross indecency upon EB, a child, contrary to s 127(1)(a) of the Criminal Code. That offence was alleged to have been committed between 1 December 2022 and 29 January 2023.
He then faced an additional two counts of assault with circumstances of aggravation, contrary to s 188(1) and (2) of the Criminal Code. Both of those offences were alleged to have taken place on 18 March 2023.
The accused was served with a notice to appear on 24 October 2023. Count one was listed for trial on 13-17 January 2025. A date to pre-record the evidence of child witnesses was listed for 11 and 12 December 2024. The January 13-17 trial date was fixed at a call-over on 11 July 2024.
With respect to counts 2 and 3, the offending was alleged to have taken place on 18 March 2023. The accused was given a notice to appear on 16 April 2023. Counts 2 and 3 were originally set down for hearing in the Local Court on 2 July 2024. The hearing was due to take place on 11 November 2024 in the Darwin Local Court.
On 24 October 2024, the Crown wrote to the Local Court advising of the intention to deal with counts 2 and 3 by way of filing an ex officio indictment. The proposed indictment was attached to the letter of 24 October 2024. All three counts were included on the one indictment. It is not clear why defence counsel was not informed of this development at that time. Defence counsel should have been informed of the email to the Court seeking to list the matter for mention so that the hearing could be vacated.[1] The Local Court vacated the hearing in Chambers on 25 October 2024.
Following a pre-trial mention in this Court on 1 November 2024, the matter was listed for a voir dire on 19 November 2024 on the issues of joinder and severance of count 1 from counts 2 and 3.
The Crown sought to have all counts on the indictment dealt with together at the one trial scheduled to commence on 13 January 2025.
Counsel for the Crown provided an updated Crown Case Outline on 8 November 2024 which included the facts it would seek to prove on all three counts. It was not sought to prove any tendency or cross admissibility of counts.
The accused contended counts 2 and 3 were improperly or erroneously joined in the same indictment as count 1. Even if properly joined, it was submitted the indictment should be severed on the basis of prejudice which would flow to the accused which could not be cured by direction.
It is necessary to consider these rulings in the context of the Crown case and the issues as far as they were known prior to the commencement of the trial. The accused denied the conduct alleged in all counts. The Court was provided with the following helpful Crown Case Outline:
Background
1.EB, aged 9, is the daughter of LHR and AB.
2.LHR and AB also have three other daughters together; AHR (aged 15), KB (aged 14) and IHR (aged 4).
3.LHR and AB were in an on again, off again relationship from 2007 to 2021.
4.After separating, the parents co-parented their daughters.
5.In approximately July 2022, AB and XN (the accused) began a relationship.
6.AB has one child with the accused, JN born 16 May 2023.
7.LHR contacted Police and Territory Families after being made aware of threats by the accused towards his children in late 2022 or early 2023. LHR understood the accused chased, threatened to hit with a pole and yelled at his children because they had not got their mother a Christmas present.
8.At the time of these incidents, AB lived at Driver.
Bed Incident (22334961)
9.On a day between 1 December 2022 and 29 January 2023, EB was staying at her mother’s house.
10.AB allowed EB to sleep in AB’s bed. When EB first started sleeping in the bed on that occasion, AB was in the bed. AB left the bed at some point in time.
11.At some stage on the relevant day, AB left the house. EB came to understand that AB went to Batchelor.
12.This left EB and the accused as the only two people at home.
13.EB was asleep in AB’s bed.
14.EB was awoken because she felt someone get up onto the bed. EB turned her head to look to her side and saw the accused.
15.The accused moved close to EB, “touching sort of close.”
16.The accused said to EB words to the effect of “Your mum’s gone to Batchelor.”
17.The accused began to stroke EB’s back with his finger.
18.The accused moved on the bed to align with the complainant so that his “privates could touch EB’s privates.”
19.While on the bed, the accused moved up and down, rubbing his ‘privates.’
20.He began looking up and down at EB and then began touching EB and rubbing his ‘privates’ onto EB’s ‘privates.’ The accused was wearing blue pants and a yellow shirt throughout and did not take his pants off.
21.EB was scared, shaking and crying.
22.Shortly after, EB moved to the couch in the same room. At some point on the couch, EB cuddled up like a ball.
23.The accused stared at EB, looking up and down in the same manner he had done so earlier.
24.EB remained on the couch for a few minutes and then left the room to move upstairs.
25.EB felt really scared. She entered the bedroom of her older sister, AHR. AHR was not there.
26.EB locked the door to AHR’s room. She then got into the cupboard in AHR’s room and hid there.
27.EB left the cupboard when she heard her mother arrive home.
28.EB approached her mother and disclosed what had occurred.
29.AB responded words to the effect of “it’s fine because he pays the bills and he’s basically [your] stepfather”.
30.AB did not take any action that EB was aware of.
31.EB primarily stayed in AHR’s room throughout the rest of the day.
Stair incident (22316267)
32.On 18 March 2023, EB and her sisters were staying with their mother.
33.AB gave EB some books to carry upstairs.
34.EB was walking up the stairs, carrying the books. The books were stacked in a manner which made it hard for EB to see where she was walking.
35.Some of the books fell while EB was halfway up the stairs.
36.The accused came up the stairs quickly.
37.While on the stairs, at some point throughout, the accused started shaking EB by her shirt, violently and shoving EB. One hard shove caused EB to fall on the stone or concrete stairs and hurt her stomach.
38.EB and the accused moved up the stairs, with the accused shoving and pushing EB throughout.
39.EB and the accused reached EB’s room.
40.The accused threw a “thick” novel which he was holding at EB’s head. This hit her head. The accused also threw a smaller, “flimsy” book at EB. This caused a scratch to EB’s upper arm and EB had a headache.
41.EB was screaming and crying. She went into the bathroom to wash her face.
42.The accused yelled and swore at EB throughout the incident, including using a number of insults towards EB, such as “fucking pig” and “feral”.
43.AHR and KB witnessed portions of this incident including witnessing the accused shaking and shoving EB on the stairs and EB crying and screaming. AHR observed EB to be scared.
44.At the end of the incident AHR came to hug her sister and confronted the accused. The accused denied what had occurred and said EB was lying.
45.EB told her mother, and understood her mother to have witnessed the incident. To EB’s knowledge, AB “did nothing”. AHR also tried to speak to her mother about the incident. AB made comment about how the accused pays the bills.
46.AB took the phones away from EB and her sisters so that they could not contact their father.
47.The next day, the accused apologised and told EB not to tell anybody.
Disclosures
48.On 24 March 2023, EB, KB and AHR returned from their mother’s to stay with their father (per the shared time arrangements which were in place at the time). LHR was approached by his daughters who told LHR about the ‘stair incident’. LHR contacted Police by calling 000 on 24 March 2023, reporting the ‘stair incident’.
49.On the weekend prior to 19 June 2023, the four daughters had stayed with AB for the weekend.
50.On or about this date, EB disclosed the ‘bed incident’ to her sisters AHR and KB. Following this disclosure, EB’s sisters said this was “serious” and EB needed to tell her father.
51.On 19 June 2023, EB disclosed to her father, LHR, what the accused had done in the ‘bed incident’.
52.LHR understood EB’s reference to ‘privates’ as a reference to ‘penis’ and ‘vagina’ because “In our house we refer to these body parts as privates and I don’t think EB knows the word penis or vagina”. “These are the only places on the body that we would describe as “privates”.”
53.LHR reported the disclosure to Police the next day.
54.On 23 October 2023, AB provided a statement to Police. AB confirmed she recalled the event in March. AB stated EB was asked to take books upstairs, EB dropped the books, AB and the accused both asked or told EB to pick them up and take them to her room, the accused helped EB to pick up the books and EB later apologised to AB and the accused, saying “I am sorry mum and XN for being a spoiled brat”. AB told Police EB then played, laughed and was happy for the rest of the weekend.
55.AB denied witnessing any assault by the accused in the ‘stair incident’. AB denied EB telling her about any assault in the stair incident.
56.AB denied that EB had disclosed the ‘bed incident’.
Other relied upon information
57.EB reported in her statement on 3 April 2023, that she found the accused to be scary and usually tried to avoid him.
58.EB reported that when the accused does not have marijuana, he “gets really angry at everyone”.
59.EB reported in her statement on 3 April 2023, that the accused regularly swears at her and calls her “a feral”. EB reported that when her sisters and mother are not present, EB feels “really not safe”.
60.AHR reported that the accused regularly argues with AB.
61.AHR reported that the accused treats EB the worst of the children.
62.AHR reported, when discussing the ‘stair incident’, that AB “always takes the phones off us, whenever anything like that happens, so we can’t call for help”.
Discussion of issues
While it was unfortunate that defence counsel were not notified of the Crown’s intention to join all charges in the one indictment when the assault charges were filed in the Local Court, that omission cannot operate to exclude proper consideration of the joinder of the charges.
Counsel for the accused argued the charges were never properly joined under s 309(1) of the Criminal Code. Section 309(1) relevantly provides charges for more than one offence may be joined in the same indictment if those charges ‘are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.’
Reliance was placed on The Queen v LM[2] where Chief Justice Grant stated:
The meaning of the word ‘series’ in this context has been said to be somewhat vague, but connotes some connection between the crimes; relates more to the legal character or components of the offences than to the facts alleged by the prosecution in each particular instance; and requires some nexus or similarity between the offences which in all the circumstances of the case enables them to be described as a series see: R v PJMS [2011] NTSC 48 at [10].[3]
Counsel for the accused submitted count 1, a sexual offence, had no similarity to counts 2 and 3, neither the legal components nor the character of the offences had relevant similarities. Count 1 was alleged to have taken place between 1 December 2022 and 29 January 2023, counts 2 and 3, on 18 March 2023. Counts 2 and 3 were not sexual offences. As the allegations in counts 2 and 3 took place immediately after one another, it was acknowledged those two counts could properly be considered a series or a course of conduct. As such, it was submitted counts 2 and 3 were not based on the same facts as count 1, were not similar in nature, did not form a series of offences and were not properly joined.
Reliance was also placed on The Queen v PJMS (‘PJMS’).[4] In PJMS, counts 1 and 2 involved charges of indecent dealing with a child. The third count was an assault with circumstances of aggravation against the same child. Justice Mildren found the third count to be improperly joined with the indecent dealing charge. The core allegation contained in the first two counts was that the accused squeezed the child complainant’s vagina. Count 3 was alleged to have taken place around one year later, the allegation being that the accused punched the child on the arm. Mildren J referred to the need for joined counts to be of a similar character, have some nexus and that there be elements of similarity which in all the circumstances enables them to be described as a series:[5]
So far as count 3 is concerned, apart from the fact that the offence was committed allegedly on the same victim it is hard to see how they are part of a series of offences of the same or a similar character as the other offences. Count 1 and 2 are both sexual offences. Count 3 is not a sexual offence at all. It is separated in time by over a year from count 2 and two years from count 1. It occurred in a different place and under entirely different circumstances.
His Honour rejected arguments put on behalf of the Crown contending there was commonality between the offences as the assault involved touching and there was a history of threats and emotional control.[6]
Each case must be considered on its own facts. Although it is acknowledged here that count 1 involves sexual offending and counts 2 and 3 do not, the inquiry on whether all counts are properly joined must go further than mere categorisation. The elements of gross indecency require physical touching to be proven. As above in the outline, it will be alleged there was “touching sort of close” and stroking before the sexual acts constituting the charge took place. Effectively, count 1 does represent applications of force without consent with an additional sexual element. Consequently, count 1 possesses similar elements as counts 2 and 3. At the most there was three and half months between the alleged conduct in count 1 and counts 2 and 3, although the time between the offences could have been as close as six weeks. The offending was alleged to have occurred in the same house, although different rooms, with the same complainant and the same alleged lack of action on the part of EB’s mother in the face of complaints from her daughter.
In short, PJMS can be distinguished given it was not a case where all of the offending took place in one family home. Here, all of the offending took place in the family home. The assault alleged in PJMS took place in a car at a petrol station. The delay between the counts was much more significant.
An additional factor which the Crown submitted was relevant to regarding the offences being of the same character was that although all offences were of a sexual or violent nature, they could all be characterised as ‘domestic violence’ offences as sexual abuse in the circumstances here is a form of domestic violence.
Section 5(1)(b) of the Domestic and Family Violence Act includes conduct specified in s 5(2) in circumstances where ‘the person had previously committed a sexual act against (or had sexual contact with) the other person without consent’. The conduct specified in s 5(2) includes ‘physical or sexual abuse’ (s 5(2)(a)). Section 5(3) adds that ‘Exposing a child with whom a person is in a domestic relationship to conduct mentioned in subsection (2), including to the effects of the conduct on another person, is also domestic violence.’ As the accused was in a relationship with EB’s mother and was regarded as her stepfather, residing with her mother at the same residence, the accused and EB’s relationship readily comes within the definition of ‘domestic relationship’ within s 9 of the Domestic and Family Violence Act.
Relevantly, s 9 provides a person is in a ‘domestic relationship’ with another person if the person:
(a) is or has been in a family relationship with the other person; or
(b)has or had the custody or guardianship of, or right of access to, the other person; or
(c)is or has been subject to the custody or guardianship of the other person or the other person has or has had a right of access to the person; or
(d) ordinarily or regularly lives, or has lived with:
(i) the other person; or
(ii)someone else who is or was in a family relationship with the other person; or
(e)is or has been in a family relationship with a child of the other person; or
(g) is or has been in a carer’s relationship with the other person.
In the circumstances of this particular case, it is entirely appropriate to characterise all of the offending as domestic violence offending.
The Crown also submitted all offences were committed with a single purpose, namely to occasion domestic violence towards EB in the exercise of emotional control over EB which took place within the family home. On the Crown case, as a matter of inference this was open and taking the Crown case at its highest does provide support to conclude there was a relevant single purpose.
A further consideration favouring joinder is reliance on the same body of evidence to establish the terms of the various relationships: between the accused and EB, her mother and at times sisters for each of the charges. The same body of evidence would provide context for each of the allegations made and the events leading up to the incidents forming the basis of the charges and beyond, including complaint. While the Crown was not relying on any tendency, some cross admissibility would be allowed in as much as it showed why various witnesses acted as they did, to prove the nature of the relevant relationship and to rebut possible defences such as accident.[7] In other words, there was clearly a case for mutual admissibility for a non-tendency purpose in the sense and for the purposes considered in HML v The Queen:[8]
·As essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of their conduct, and to explain the offences charged;
·To overcome a false impression that the event in question happened ‘out of the blue’ where the acts are closely and inextricably mixed up with the history of offending;
·To assess the credibility of the complainant’s evidence;
·To ensure the jury is not required to decide issues in a vacuum, and to negative issues concerning identity and lawfulness.
In my view there was a compelling case for joinder under s 309 of the Criminal Code. In any event, the relatively recent addition of s 341B to the Criminal Code creates a presumption that domestic violence offences will be tried together. That presumption became law on 25 March 2024 through the Justice Legislation (Domestic and Family Violence Act) 2023. As to whether the presumption applied to this case, while the usual rule is that procedural provisions apply prospectively, it may have been possible to argue that in some circumstances substantive rights are affected by s 341B. The alleged offending took place before the commencement of s 341B and the relevant indictment was not filed until 24 October 2024, after its commencement. Although the Explanatory Statement appears to be to the contrary:[9]
The intent of the Bill to only apply to offences which are committed after the Amendment Act has commenced; section 478 of the Criminal Code makes plain the provision applies to indictments presented after the commencement of s 341B, even if the offence charged precedes it:
Section 341B, as inserted by the amending Act, applies in relation to an indictment presented or filed in court after the commencement, even if an offence charged in the indictment is alleged to have been committed before the commencement.
The presumption of joint trials applied to this matter as the indictment was filed on 24 October 2024 and the conduct alleged fell within the definition of ‘domestic violence’ as defined by the Domestic and Family Violence Act.
In terms of the application to sever, counsel for the accused argued counts 2 and 3 should be severed from Count 1, notwithstanding the Court may take the view that charges were properly joined. Section 341(1) of the Criminal Code permits separate trials if the Court is of the opinion an accused may be prejudiced in their defence; the accused may be embarrassed in their defence or for any other reason it is desirable to direct a separate trial.
The discretion will be guided by a number of considerations which include:[10]
·The degree of the interrelationship between the facts giving rise to the counts, and in particular whether the evidence is cross admissible as between counts for a legitimate purpose;
·Whether any potential prejudice may be allayed by proper directions to the jury;
·Impact on both the complainant and the accused of ordering multiple trials.
As was said in R v O’Brien[11] concerning the presumption with respect to sexual offences in s 341A, ‘prejudice’ in this context ‘means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.’ Similarly, the loss by an accused of the strategic advantage of conducting his or her defence in each trial in isolation does not of itself constitute prejudice in the material sense. Something more is required, such as the misuse of the evidence on one charge to support a conviction for an unrelated charge for which it would be inadmissible.
Counsel for the accused drew attention to McHugh J’s statement in KRM v R[12] determining the factors relevant to severance: ‘Ordinarily, however, the court should order separate trials where … the joinder of charges creates a risk of prejudice.’ Further, it was pointed out that in R v TJB,[13] Callaway JA provided guidance by the following:
·An indictment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect, sexual offences are no different from other offences.
·One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again, is not peculiar to trials to sexual offences.
·It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair.
·There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
·As between complainants there is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose, or the judge rules that it is inadmissible because of prejudice.
Further, in R v Hofschuster[14] Mildren J stated:
That the power of the Court under s 341 of the Criminal Code to order separate trials is not limited to a situation where an accused may be prejudiced or embarrassed in his defence, but rather: ‘the court may so order, notwithstanding that no prejudice or embarrassment is demonstrate by the accused, if it is desirable ‘for any other reason’.
It is accepted here, which was a central part of the accused’s submissions, that some sexual offences are particularly likely to arouse prejudice against which direction to a jury is unlikely to guard.[15]
This was recognised in De Jesus v R, when Gibbs J said:[16]
Sexual cases, however, are peculiarly likely to arouse prejudice against which direction to the jury is unlikely to guard.
Similar, sentiments were expressed in R v TJB where Callaway J stated:[17]
At least some sexual offences, particularly those of an unnatural nature or repellent character like offences against young children, are peculiarly likely to arouse prejudice. The law cannot shut its eyes to the facts of life.
While I acknowledge those authorities and acknowledge the problem of prejudice in particularly demeaning behaviour described in some sexual offences, that sentiment cannot be applied in a way which would effectively create a counter presumption, contrary to the presumption in 341B concerning domestic violence offences.
On behalf of the accused it was submitted that should the indictment not be severed, there is a real risk that the accused will be substantially prejudiced and embarrassed by a jury being made aware of the following:[18]
i.Not only does he face a serious sexual offence against a nine year old, he is also charged with violent offences against the same complainant.
ii.Both charges are quite different in nature, but both will likely incite a real emotional and/or irrational response to the accused. Not only in the jury’s mind is the accused a potential paedophile, but also a paedophile who commits acts of other physical violence against the same child; and or
iii.Even considered judicial directions will not be able to rectify the risk of real and substantial prejudice to the accused.
iv.It should also be noted that the proceedings have been on foot for over a year and a half. The Crown have only recently filed the amended indictment. The defendant, who now is on remand for additionally, separate offences, will be prejudiced in his ability to properly prepare his trial, particularly in circumstances, whereby prison visits are difficult to obtain, are delayed, and are often cancelled.
As to (i), as above, the Court cannot ignore and must apply the presumption in cases which are defined as domestic violence cases. It cannot be the case that whenever there is a sexual offence, a counter presumption will apply, although it is accepted the nature of the offending is a consideration. As to (ii), the circumstances there described remain a possibility in some cases. However, here the allegations, although serious, are not of such a grotesque order that emotions and irrational thinking are likely to subsume directions given at various stages in the trial. As to (iii), this is not a case where the enormity of potential prejudice will prevail against what will be fairly standard directions. As to (iv), while I agree the accused should have been informed earlier of the joinder of all charges, the evidential material which forms the backdrop of the allegations is the same throughout. Arrangements will need to be made to ensure the accused and counsel can prepare. It is accepted it is currently difficult for counsel to obtain instructions from people in custody. Such difficulties may require bail to be considered afresh when it has been previously refused.
Counsel for the accused also submitted[19] disclosure of all allegations against the accused were likely to provoke an emotional reaction, which would inevitably tend to show bad character or moral shortcomings on his part. It may also incite revulsion in members of the jury. It was said there is a real risk that the joinder of charges will distract the jury and the risk of misuse of each charge is very high as it has the potential to allow the jury to improperly engage in propensity reasoning and draw an illegitimate conclusion that the defendant is therefore guilty across all counts. This was said to be so particularly given tendency reasoning would not be deployed.
As above, the misuse of evidence refers to the danger of improper use and not a tendency to inculpate. There is common background evidence and evidence relevant to the relationships between various witnesses and the accused. That evidence was important even though it is not to be used as tendency evidence. The nature of the alleged offending, although serious, is not at a level where a level of disgust would be aroused such that the jury could not concentrate on their task, appropriately directed.
The ruling was against severance. All charges proceeded in the one trial which commenced on January 13, 2025.
Post Trial
The accused was found not guilty of all charges at the conclusion of the trial. My own observation was that certain witnesses were readily discredited on the basis of unreliability. The primary focus of the witnesses was count 1. The issues of reliability and credibility carried over and were relevant to counts 2 and 3. A Markuleski direction was given. As a cautionary tale, the accused in this case may well have been in a more favourable position having had all charges dealt with together. A tactical advantage is likely to have been lost if there had indeed been two trials.
The reasons will be forwarded to counsel.
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[1] Outline of defence submissions on joinder and severance, 18 November 2024 at 4.
[2] [2017] NTSC 81 at [36].
[3] Packett v The King (1937) 58 CLR 190 at 207; Sutton v The Queen (1984) 152 CLR 528 at 540-541; De Jesus v The Queen (1986) 61 ALJR 1 at 9.
[4] [2011] NTSC 48.
[5] [2011] NTSC 48 at [12].
[6] [2011] NTSC 48 at [13].
[7] In the sense of evidence admitted in R v FDP (2009) 74 NSWLR 649; Wilson v The Queen (1970) 123 CLR 334.
[8] (2008) 235 CLR 334; see also, The King v Swan [2024] NTSC 82 at [19].
[9] Outline of defence submissions on joinder and severance, 18 November 2024 at [24].
[10] R v LM [2017] NTSC 81, (Grant CJ).
[11] [2017] NTSC 34 at [11], (Grant CJ).
[12] [2001] 206 CLR 22 at 235.
[13] [1998] 4 VR 621 at 622.
[14] (1992) NTSC 23.
[15] R v Johnston [2016] NTSC 57 at [11].
[16] (1986) 61 ALJR 1.
[17] [1998] 4 VR 621.
[18] Outline of defence submissions on joinder and severance at [35].
[19] Outline of defence submissions on joinder and severance at [36].
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